Citation Nr: 0844192
Decision Date: 12/22/08 Archive Date: 12/31/08
DOCKET NO. 03-32 243A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an initial compensable disability rating
for left knee strain with patella bursitis prior to April 3,
2007.
2. Entitlement to a disability rating greater than 10
percent for left knee strain with patella bursitis since
April 3, 2007.
3. Entitlement to an initial compensable disability rating
for right knee strain with patella bursitis prior to April 3,
2007.
4. Entitlement to a disability rating greater than 10
percent for right knee strain with patella bursitis since
April 3, 2007.
5. Entitlement to an initial compensable disability rating
for pseudofolliculitis barbae.
6. Entitlement to an initial compensable disability rating
for right ankle third degree sprain.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The veteran had active service from January 1999 to January
2002.
This matter comes before the Board of Veterans' Appeals
(Board or BVA) on appeal from a June 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.
In its June 2002 rating decision the RO granted service
connection for bilateral knee disorders and assigned
noncompensable disability ratings for each knee with an
effective date of January 15, 2002, the day after the
veteran's discharge from service. The veteran disagreed with
the noncompensable disability rating assigned and in an
August 2007 rating decision the RO increased the veteran's
disability rating for each knee from noncompensable to 10
percent with an effective date of April 3, 2007, the date of
the veteran's most recent VA examination. Where a veteran
has filed a notice of disagreement (NOD) as to the assignment
of a disability evaluation, a subsequent rating decision
awarding a higher rating, but less than the maximum available
benefit, does not abrogate the pending appeal. See AB v.
Brown, 6 Vet. App. 35, 38 (1993). Thus, the veteran's claims
for increased ratings for bilateral knee disorders both prior
to and beginning April 3, 2007, remain before the Board.
In February 2004 correspondence the veteran raised the issue
of entitlement to a total disability rating based on
individual unemployability. This matter is not currently
developed or certified for appellate review. Accordingly, it
is referred to the RO for appropriate action.
This case was previously before the Board in November 2006
and March 2008. The Board is satisfied that there has been
substantial compliance with the remand directives and the
Board may proceed with review. Stegall v. West, 11 Vet. App.
268 (1998).
The veteran testified before the undersigned at a Travel
Board hearing in St. Petersburg, Florida in October 2008. A
transcript of this hearing is associated with the claims
folder.
In a January 2008 Informal Hearing Presentation, the
veteran's representative expressed disagreement with a
November 2006 Board decision that granted an effective date
of April 8, 2003, for assignment of a 20 percent rating for
lumbosacral strain. The purpose of the March 2008 remand was
to afford the veteran the opportunity to present testimony
before a member of the Board in fulfillment of a hearing
request he had made, prior to the November 2006 Board
decision. It was noted in the March 2008 remand, that if the
veteran appeared and provided testimony, vacatur of the
issues finally decided in the November 2006 Board decision
would be warranted. The veteran was afforded a hearing
before the undersigned in October 2008 at which time he was
accompanied by his accredited representative. There was no
testimony offered on the issue of an earlier effective date
of the assignment of the 20 percent rating for lumbosacral
strain. As such, the Board finds that vacatur of that issue
is not appropriate.
The issues of entitlement to increased ratings for bilateral
knee disorders both prior to and since April 3, 2007, and
entitlement to an increased rating for the veteran's right
ankle disorder are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
The veteran's pseudofolliculitis barbae is manifested by
itchy, "BB sized" bumps in the beard area under the jaw
involving less than five percent of his total skin area.
CONCLUSION OF LAW
The criteria for an initial compensable disability rating for
pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118,
Diagnostic Code 7800 (prior to and beginning August 30,
2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that his service connected
pseudofolliculitis barbae is more disabling than currently
evaluated. Disability evaluations are determined by the
application of a schedule of ratings, which are based on the
average impairment of earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Separate diagnostic codes identify the
various disabilities. The governing regulations provide that
the higher of two evaluations will be assigned if the
disability more closely approximates the criteria for that
rating. Otherwise, the lower rating is assigned. 38 C.F.R.
§ 4.7. A request for an increased rating is to be reviewed
in light of the entire relevant medical history. See
generally 38 C.F.R. § 4.1; Payton v. Derwinski, 1 Vet. App.
282, 287 (1991).
In claims for initial ratings, "staged ratings" or separate
ratings for separate periods of time may be assigned based on
the facts. Fenderson v. West, 12 Vet. App. 119 (1999).
The veteran's skin condition is currently rated as
noncompensably disabling under 38 C.F.R. § 4.118, DC 7800.
The schedular criteria by which dermatological disorders are
rated changed during the pendency of his appeal. See 67 Fed.
Reg. 49590-49599 (July 31, 2002) (effective August 30, 2002)
codified at 38 C.F.R. § 4.118. A subsequent change to the
rating criteria pertains to claims filed on or after October
23, 2008, and is not applicable in this case. See 73 Fed.
Reg. 54708 (September 23, 2008).
Generally, in a claim for an increased rating, where the
rating criteria are amended during the course of the appeal,
the Board considers both the former and the current schedular
criteria because, should an increased rating be warranted
under the revised criteria, that award may not be made
effective before the effective date of the change. See Kuzma
v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling
Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it
held that, where a law or regulation changes after a claim
has been filed or reopened but before the administrative or
judicial appeal process has been concluded, the version more
favorable to appellant should apply). See also VAOPGCPREC 7-
2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000). A
review of the record demonstrates that the RO considered the
unrevised and the revised rating criteria, and the veteran
was made aware of the changes in an August 2007 supplemental
statement of the case. See Bernard v. Brown, 4 Vet. App. 384
(1993).
Prior to the August 20, 2002 revision, disfiguring scars of
the head, face, and neck were rated as 50 percent disabling
with complete or exceptionally repugnant deformity of one
side of face or marked or repugnant bilateral disfigurement.
A 30 percent rating was assigned for severe scar, especially
if it produced a marked or unsightly deformity of eyelids,
lips or auricles. A moderately disfiguring scar was rated as
10 percent disabling. 38 C.F.R. § 4.118, DC 7800 (2002).
Under the amended DC 7800 (disfigurement of the head, face,
or neck), with visible or palpable tissue loss and either
gross distortion or asymmetry of three or more features or
paired sets of features (nose, chin, forehead, eyes
[including eyelids], ears [auricles], cheeks, lips), or with
six or more characteristics of disfigurement will be rated as
80 percent disabling. With visible or palpable tissue loss
and either gross distortion or asymmetry of two features or
paired sets of features (nose, chin, forehead, eyes
[including eyelids], ears [auricles], cheeks, lips), or with
four or five characteristics of disfigurement the disability
will be rated at 50 percent. With visible or palpable tissue
loss and either gross distortion or asymmetry of one feature
or paired set of features (nose, chin, forehead, eyes
[including eyelids], ears [auricles], cheeks, lips), or with
two or three characteristics of disfigurement the disability
will be rated at 30 percent. With one characteristic of
disfigurement the disability will be rated at 10 percent. 38
C.F.R. § 4.118, DC 7800.
The eight characteristics of disfigurement are: skin
indurated and inflexible in an area exceeding six square
inches; underlying soft tissue missing in an area exceeding
six square inches; skin texture abnormal (irregular,
atrophic, shiny, scaly, etc) in an area exceeding six square
inches; skin hypo or hyperpigmented in an area exceeding six
square inches; scar adherent to the underlying tissue;
surface contour of scar elevated or depressed on palpation;
scar at least one-quarter inch in length; or scar five or
more inches in length. 38 C.F.R. § 4.118, DC 7800, Note (1).
Evidence relevant to the current level of severity of the
veteran's skin disorder includes VA examination reports dated
in June 2002 and April 2007. During the June 2002 VA
examination the veteran complained about having shaving bumps
from pseudofolliculitis barbae when he was in the military
and required to shave. The examiner noted some mild bumps on
the veteran's neck and old scarring which was very, very
mild. The impression was a diagnosis of pseudofolliculitis
barbae with resulting current bumps and scarring from
previous infections.
During the April 2007 VA examination the examiner noted that
the bumps on the veteran's face began during basic training
and the veteran was issued a shaving waiver where he would
only be required to shave every two weeks. The course and
condition of the veteran's skin disorder was described as
constant and the symptoms were described as bumps and itching
under the neck. No systemic symptoms were reported and the
veteran denied skin disease treatment in the past 12 months.
Other significant skin examination findings included "BB
sized" bumps in the beard area under the jaw. The diagnosis
was pseudofolliculitis barbae and the examiner noted that
less than five percent of the veteran's skin was involved.
Also of record are VA outpatient treatment reports dated from
November 2003 through September 2006. These records show
complaints of a skin rash on the arms, hands, fingers, and
legs in November 2005. However, these records are negative
for treatment of the veteran's pseudofolliculitis barbae.
a. Prior to August 30, 2002
With regard to the criteria in effect prior to August 30,
2002, the Board finds that the veteran's pseudofolliculitis
barbae does not warrant a compensable rating under DC 7800.
Under the pre-August 30, 2002 criteria, a compensable
evaluation is not warranted unless the evidence demonstrates
moderate disfigurement. The words "slight," "moderate"
and "severe" are not defined in the rating schedule.
Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are "equitable and just." See 38 C.F.R. § 4.6.
The Board finds that the findings described by the June 2002
and April 2007 VA examiners are less than "moderate
disfigurement" contemplated in the pre-August 30, 2002
regulations. The April 2007 VA examiner noted "BB sized"
bumps in the beard area under the jaw and indicated that less
than five percent of the veteran's skin was involved. The
veteran also denied skin disease treatment in the past 12
months. Thus, the weight of the evidence, to include all of
the physician's findings, supports a finding that the
veteran's pseudofolliculitis barbae does not warrant a
compensable rating prior to August 30, 2002.
b. From August 30, 2002
With regard to the criteria in effect from August 30, 2002,
the Board finds that the veteran's pseudofolliculitis barbae
does not warrant a compensable evaluation. As per DC 7800, a
compensable disability rating is appropriate where the
veteran has one characteristic of disfigurement. Neither the
June 2002 nor the April 2007 VA examiners described even one
of the eight characteristics of disfigurement described in DC
7800, Note (1).
The Board also finds that no higher evaluation can be
assigned pursuant to any other potentially applicable
diagnostic code. Because there are specific diagnostic codes
to evaluate scars of the head, face, or neck, consideration
of other diagnostic codes for evaluating the disability does
not appear appropriate. See 38 C.F.R. § 4.20 (permitting
evaluation, by analogy, where the rating schedule does not
provide a specific diagnostic code to rate the disability).
See Butts v. Brown, 5 Vet. App. 532 (1993).
In conclusion, the Board finds that the evidence does not
warrant a compensable disability rating for the veteran's
pseudofolliculitis barbae either prior to or beginning August
30, 2002.
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. In the notice, VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any,
that VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2007);
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006).
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490
(2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The
appellant bears the burden of demonstrating any prejudice
from defective notice with respect to the downstream
elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That
burden has not been met in this case.
Nevertheless, the record reflects that the veteran was
provided a meaningful opportunity to participate effectively
in the processing of his claim such that the notice error did
not affect the essential fairness of the adjudication now on
appeal. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
The veteran was notified that his claim was awarded with an
effective date of January 15, 2002, the day after his
discharge from service, and a noncompensable rating was
assigned. He was provided notice how to appeal that
decision, and he did so. He was provided a statement of the
case that advised him of the applicable law and criteria
required for a higher rating and he demonstrated his actual
knowledge of what was required to substantiate a higher
rating in his argument included on his Substantive Appeal.
Although he was not provided pre-adjudicatory notice that he
would be assigned an effective date in accordance with the
facts found as required by Dingess, he was assigned the date
of the claim as an effective date, the earliest permitted by
law. 38 U.S.C.A. § 5110(a).
Moreover, the record shows that the appellant was represented
by a Veteran's Service Organization and its counsel
throughout the adjudication of the claims. Overton v.
Nicholson, 20 Vet. App. 427 (2006).
VA has obtained service medical records, assisted the veteran
in obtaining evidence, afforded the veteran physical
examinations, obtained medical opinions as to the severity of
disabilities, and afforded the veteran the opportunity to
give testimony before the Board. All known and available
records relevant to the issues on appeal have been obtained
and associated with the veteran's claims file; and the
veteran has not contended otherwise.
VA has substantially complied with the notice and assistance
requirements and the veteran is not prejudiced by a decision
on the claim at this time.
ORDER
An initial compensable disability rating for
pseudofolliculitis barbae is denied.
REMAND
During the veteran's October 2008 Travel Board hearing he
testified that he was currently unemployed and participated
in VA Vocational Rehabilitation due to his bilateral knee
disorders. However, the veteran's VA Vocational
Rehabilitation records have not been associated with the
claims file.
Also, during the veteran's October 2008 Travel Board hearing
he testified that his knees have been "giving out" on him
since at least 2002. However, the April 2007 VA examination
report is negative for instability.
Finally, a review of the record shows that by rating decision
dated in June 2002 the RO granted service connection for
right ankle third degree sprain and assigned a noncompensable
disability rating. While the rating decision was dated in
June 2002 a date stamp on the cover letter of that decision
shows that it was not actually mailed until July 2002. The
veteran submitted a timely notice of disagreement in July
2003. When a notice of disagreement is timely filed, the RO
must reexamine the claim and determine if additional review
or development is warranted. If no preliminary action is
required, or when it is completed, the RO must prepare a
statement of the case pursuant to 38 C.F.R. § 19.29, unless
the matter is resolved by granting the benefits sought on
appeal or the notice of disagreement is withdrawn by the
appellant or his or her representative. 38 C.F.R. § 19.26.
As of this date, the veteran has not been issued a statement
of the case on this issue. Accordingly, the Board is
required to remand this issue to the RO for the issuance of a
statement of the case. See Manlicon v. West, 12 Vet. App.
238 (1999).
In light of the foregoing, this case must be remanded for
further development, as outlined above. The Board regrets
the additional delay in this appeal by issuing this remand,
but this process is necessary to ensure that there is a
complete record upon which to decide the veteran's claim so
that he is afforded every possible consideration.
Accordingly, the case is REMANDED for the following action:
1. Obtain a copy of the veteran's VA
Vocational Rehabilitation records and
associate with the claims file.
2. After completion of the foregoing,
schedule the veteran for a VA examination
to identify the current level of
impairment resulting from his service-
connected bilateral knee disorders. The
claims folder must be made available to
the examiner for review in connection
with the examination. All necessary
tests, including range of motion testing,
should be conducted.
The examiner should identify and describe
in detail all residuals attributable to
the veteran's service-connected bilateral
knee disabilities and specifically
indicate whether the veteran experiences
instability of either knee.
3. Issue a Statement of the Case (SOC)
specifically regarding the issue of
entitlement to an initial compensable
disability rating for the veteran's
service-connected right ankle third
degree sprain. The RO should also advise
the appellant of the need to timely file
a substantive appeal if he desires
appellate review of this issue.
4. After completing any additional
necessary development the RO should
readjudicate the appeal. If the claim is
still denied the RO must furnish the
veteran and his representative with a
Supplemental Statement of the Case (SSOC)
and allow the veteran an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs